Synopsis

Late claim application denied due to lack of merit to claim seeking to recover
money damages from State for his arrest by Town of Cheektowaga Police based on
information from DMV that claimant's license was suspended. Claimant failed to
allege elements necessary for negligent misrepresentation.

Claimant's motion for late claim relief pursuant to Court of Claims Act §
10 (6) is denied. The claimant seeks to file a claim arising out of his arrest
and detention by members of the Town of Cheektowaga Police Department on May 5,
2001 allegedly caused by the dissemination of false information regarding the
status of claimant's driver's license by the Commissioner of Motor Vehicles and
certain unnamed employees of the Department of Motor Vehicles. Specifically
claimant alleges in the proposed claim that such false information included the
alleged suspension of claimant's driving privileges based upon claimant's
failure to maintain automobile liability insurance as required by the Vehicle
and Traffic Law. The proposed claim asserts that claimant was caused to suffer
a loss of liberty, humiliation and emotional distress for which he seeks
$1,000,000.00 in compensatory damages.

In his affidavit in support of the motion for late claim relief claimant's
attorney alleges that he was retained near the eve of the ninety day filing
deadline to commence separate claims against the State and the Town of
Cheektowaga. He alleges that he prepared the appropriate documents and that a
claim was served upon the Office of the Attorney General at 107 Delaware Avenue,
Buffalo, New York on August 2, 2001. He further asserts that he left
instructions with his office regarding the filing of the claim with the Court
but that such filing did not occur. He maintains that the delay in filing the
claim is excusable and that the State had timely notice of the claim based upon
the aforementioned service of the claim on the Office of the Attorney General as
demonstrated by the service of the State's answer. He also argues that the
State had ample opportunity to investigate the claim, that the claim is
meritorious and that claimant has no other remedy available.

In opposition to the motion Assistant Attorney General Richard Friedfertig
submitted an affidavit which incorporated by reference the notice of claim filed
by claimant against the Town of Cheektowaga in which the following alleged facts
attendant to claimant's arrest and detention were set forth: 4. On May 5, 2001
Claimant went to the Cheektowaga Police Headquarters to report that his wallet
had been lost.

5. Incident to that report an employee of the Town of Cheektowaga Police
Department told Claimant that the Department of Motor Vehicles computer to which
they had access indicated that Claimant's driving privilege had been suspended
for a prior insurance lapse.

6. Claimant informed the said employee of a Department of Motor Vehicles error
for which he had an explanatory letter from the Department of Motor Vehicles
clarifying that his driving privilege was erroneously suspended.

7. Claimant further informed the said employee and the employee acknowledged
awareness that the Department of Motor Vehicles was erroneously reporting such
information about motorists.

8. Prior to Claimant leaving the Cheektowaga Police Station and in the course
of his exchange with the employee, he was told that he would be arrested were he
to drive from the Cheektowaga Police Station.

9. Claimant told the said employee that he had proof of the error by way of a
letter from the Department of Motor Vehicles and he and the employee continued
the business of completing the lost wallet report.

10. Claimant then drove home to retrieve his letter from the Department of
Motor Vehicles and drove on to conduct other business.

11. Claimant was then pulled over by three marked Cheektowaga police cars,
arrested, booked and held in lieu of bail for approximately three hours.

In response to this application for late claim relief the State argues that the
proposed claim lacks merit since claimant has not alleged that the defendant
directed the members of the Cheektowaga Police Department to arrest the
claimant, the State is not responsible for directing or controlling the actions
of the Town of Cheektowaga Police Department and that the claimant has failed to
establish the elements of a viable cause of action for negligent
misrepresentation, citing Williams v State of New York, 90 AD2d 861;
Johnson v State of New York, 166 Misc 2d 333; Collins v Brown, 129
AD2d 902. The State also argues that the excuse offered for the claimant's
failure to timely file the claim with the Court is not reasonable. The
defendant requests that claimant's application for late claim relief be
denied.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the
application is timely. Since the proposed claim apparently asserts a negligence
cause of action, the three year Statute of Limitations set forth in CPLR §
214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).

With regard to the excuse advanced for claimant's failure to timely file the
claim within 90 days of its accrual, law office failure does not constitute a
reasonable excuse for the late filing of a claim (Sessa v State of New
York, 88 Misc 2d 454, 459, affd 63 AD2d 334, affd 47 NY2d 976;
Nyberg v State of New York, 154 Misc 2d 199). The lack of an acceptable
excuse is only one of the factors to be considered and although it weighs
against claimant it does not constitute a bar to the relief requested
(Carvalho, Matter of v State of New York, 176 AD2d 317).

Defense counsel has not specifically addressed the closely related issues of
notice, opportunity to investigate and substantial prejudice. Claimant's
attorney has alleged service of the claim upon Assistant Attorney General John
C. Luzier at 107 Delaware Avenue, Buffalo, New York on August 2, 2001 which was
within 90 days of the claim's accrual. The Court finds that the timely service
of the claim upon the Attorney General afforded the State notice and an
opportunity to investigate the claim and that the State was not prejudiced by
the failure to timely file. The issues of notice, opportunity to investigate
and a lack of substantial prejudice therefore weigh in favor of the application.

Perhaps the most significant of the statutory factors is whether the claim
appears meritorious since it has been held that to permit the filing of a
legally deficient claim would be an exercise in futility (Savino v State of
New York, 199 AD2d 254). In its opposition to the motion the State has
argued that the proposed claim sounds in negligent misrepresentation which
requires an allegation that claimant relied to his detriment upon the erroneous
information provided by DMV regarding the status of his license. In this regard
the proposed claim sets forth the following:

4. On May 5, 2001 and apparently on dates prior thereto the State of New York
by its Commissioner and Department of Motor Vehicles promulgated by way of
computer and otherwise false information to the effect that Claimant's driving
privilege was suspended based upon his failure to maintain insurance as required
by the Vehicle and Traffic Law.

5. The said false information caused Claimant to be, on May 5, 2001, arrested
by officers of the Cheektowaga Police Department, held in custody in lieu of
bail and thereafter subjected to criminal prosecution all without basis
therefor.

Nowhere in the proposed claim or the affidavit in support of the instant
application does claimant assert any reliance on his part upon the State's
alleged misrepresentations. In fact, it was the Town of Cheektowaga police who
relied upon the representation that claimant's driving privileges were suspended
making this case indistinguishable as pleaded from the facts in Williams v
State of New York, 90 AD2d 861, in which the Third Department held that
absent reliance by the claimant no cause of action for negligent
misrepresentation exists (see also, Collins v Brown, 129 AD2d 902;
Johnson v State of New York, 166 Misc 2d 333).

Finally, it appears that the claimant is pursuing an alternative remedy by way
of an action commenced against the Town of Cheektowaga.

Upon consideration of all the relevant factors, the application for late claim
relief is denied.

January 17, 2002Saratoga
Springs, New York

HON. FRANCIS T. COLLINSJudge of the Court of
Claims

The Court considered the following papers:

1. Notice of motion dated October 15, 2001;

Affidavit of Robert B. Druar sworn to October 9, 2001 with exhibit;

Affidavit of Richard B. Friedfertig sworn to October 30, 2001 with
exhibit.